Bamonte v. City of Mesa

informed language changed the BAMONTE; Cota; Ricardo Fred Javier 3583(e)(3), § interpretation Johnson's similarly Perine, and other situated changed language has Congress fact Plaintiffs-Appellants, employees, 3583(e)(3),5 which the Court something § two ver contrasting the emphasized v. 705, 120 1795.6 S.Ct. 529 U.S. See sions. body MESA, politic, OF CITY Defendant-Appellee. short, and well. is alive Jackson No. 08-16206. impose has discretion court A district after sentences or consecutive concurrent Appeals, United States Court terms of multiple concurrent revocation Ninth Circuit. having Consequently, release. supervised 1, June 2009. Argued and Submitted of su multiple terms Xinidakis’s revoked release, court could the district pervised 25, Filed March imprisonment him to terms of sentence original consecutively though even

run AF concurrently. ran of release

terms

FIRMED. Johnson, 3583(e)(3) (1994) (au- confronting § 6. The issue Compare 18 U.S.C. impose § a district court to 3583 allows super- a term of thorizing courts to "revoke supervised release after additional term of release, person require the to serve vised incarcerating violating a term a defendant for supervised prison part of the term of all or release, supervised was resolved when Con- previously without credit for time ser- release 3583(h). § gress See Violent Crime added supervision”), postrelease with 18 viced on Act and Law Enforcement Control 3583(e)(3) (authorizing § U.S.C. 103-322, 110505(3), § 108 Stat. Pub.L. No. supervised term re- to "revoke a courts with Xinidakis's the- 2017. In contrast lease, require serve in the defendant to ory, characterizes the time this subsection supervised the term of prison all or super- custody after revocation of served statute release authorized offense imprisonment.” release as a "term of vised supervised release in such term that resulted 3583(h); § see also United See 18 U.S.C. previously served on credit for time without 57-58, Johnson, 529 U.S. States added). supervision”) postrelease (2000) (analyzing S.Ct. 146 L.Ed.2d 3583(e)(3) applies § version of The latter 3624(e) ordinary, noting that "the com- he convicted in 1999. because was Xinidakis meaning of release is to be freed monsense Johnson, S.Ct. 1795 say respondent 529 U.S. at To from confinement. "postrevocation penalties imprisoned relate diminishes the (holding that while still released offense”). convey”). concept the word intends original Phoenix,

Mendelson, AZ, appellee City of Mesa. Nave, Meyers, Ri- Hartinger,

Arthur A. back, Wilson, Oakland, CA, & for Silver Cities, League Amici of California Curiae Counties, California State Association Municipal Lawyers International Association.

Before: RONALD M. GOULD and RAWLINSON, B. JOHNNIE Circuit GEORGE,* Judges, and LLOYD D. Judge. District RAWLINSON; Opinion by Judge Partial Partial Concurrence and Dissent by Judge GOULD.

RAWLINSON, Judge: Circuit Appellants, police officers employed Appellee City (City), challenge Mesa entry summary judg- district court’s City. ment in favor of the The officers City Fair contended that violated the (FLSA) by failing Labor Standards Act for cоmpensate police officers and, accompa- of their uniforms nying op- Because officers had the tion of their uniforms home, the district court deter- mined that these activities were not com- pensable pursuant to the FLSA and agree these Portal-to-Portal Act. We compensable pursuant activities were FLSA, and affirm the district (argued) B. Aitchison William judgment. court’s Sheetz, Vick, Inc., M. & Breanne Atchison Portland, OR, appellant Fred Bamonte. I. for BACKGROUND Mesa, most mu- City like other Ogden, Mark Laurent R.G. Badoux

J. Lehet, nicipalities, requires Michael Littler (argued), and J.

* designation. Lloyd George, D. U.S. District The Honorable Nevada, Judge sitting for the District gear, home, uniforms and related their

wear certain because shifts shirt, trousers, begin when including a name- leave residences. usually a tie, tag, specified a or velcro foot- clip-on facts, these court granted On the district wear, belt, duty weap- a a badge, a service City’s summary motion judgment, handcuffs, on, holster, spray, chemical that, concluding because officers had the baton, portable wearing and a radio. The option and ability to don and doff their although body optional, armor is home, and gear specific uniforms body to have the officers are workplace

armor was not com- available. pensable. timely The filed a officers no- argument of their support appeal. tice of uni- spent time and gеar compensable, form and related was II. STANDARDS OF REVIEW police emphasized relation- officers review de “We novo the district court’s ship gear their uniform and between granting summary judgment.” order San performance Specifi- of their duties. Diego Police v. Diego Ass’n San Officers’ cally, relayed the officers their belief City Employees’ Sys., Retirement 568 F.3d gear the uniforms and to then- contribute (9th Cir.2009) (citation 725, omitted). command presence, thereby promoting of- “In doing by so we governed are the same safety ficer public in furtherance of principles whether, as the court: district goals. law enforcement with light the evidence viewed most explained The officers also it that was non-moving party, favorable to the there preferable to don and doff their uniforms genuine fact, are no issues of material so gear expla- at the The station. moving party is entitled to a nation the following included consider- (citation judgment as a matter of law.” Id. (1) omitted). ations: the risk of loss or theft of (2) home; gear potential “Interpretations FLSA and family access to the or members regulations questions (3) guests; might distractions home that appellate courts review district court inter (4) interfere with the donning process; pretations DDR, Inc., Gieg de novo.” v. safety with performing concerns firearm (9th 1038, Cir.2005) (cita 407 F.3d 1044-45 (5) home; checks at discomfort associated omitted). tion with wearing commuting; while (6) the risk of being increased identified as III. DISCUSSION a officer while off-duty; and axiomatic, “It is under potential exposure family members to FLSA, employers pay employ must bodily City contaminants and fluids. IBP, all ees for hours Alvarez worked.” v. was not oblivious to the concerns ex- Inc., (9th Cir.2003), F.3d aff'd pressed by the officers. Each officer is grounds on other IBP sub nom. v. Alva provided station, a locker and facili- rez, 546 U.S. 126 S.Ct. ties are for available the officers to don (2005) (citations L.Ed.2d and internal doff their uniforms and related omitted). quotation “Work, marks the Su sum, have option officers don noted, preme physical Court has is long or doff at home at work. requirement or No (whether mental exertion burdensome or imposed City, not) controlled or required employ exception motorcycle officers, who pursued necessarily er primarily required (cita- to don and doff their uniforms for the benefit of the employer.” Id. omitted) quotation compensation marks for which un- and internal tion added). However, such der the Fair Labor Standards Act. (emphasis “[t]hat as a matter does activity is work threshold (internal quotation Id. at S.Ct. 330 activity mean without more that omitted). marks case decided compensable. The Portal-to- necessarily backdrop of a against manufacturing Act of 1947 relieves Portal employees faced process where constant fоr responsibility compensating health-threatening, if exposure not life- preliminary which are for activities threatening, poisoning. lead See id. postliminary 249-50, 76 S.Ct. “[I]ndustrial (citation, given job.” “[sjafe activities of experts” agreed medical opera- alteration, marks quotation and internal tion ... require[d] clothing removal omitted) added). showering end required showering period.” The had “be- compensation The issue of hy- industrial recognized come clothing is not new. programs industry, giene Mitchell, 247, 76 350 U.S. In Steiner require[d] law ... facilities state for this (1956), the Su- 100 L.Ed. 267 S.Ct. 250, (cita- ...” purpose Id. 76 S.Ct. 330 considered preme Court omitted). The employer’s tion insurer battery plant must in a whether workers accept risk if “would insurance [the of activi- paid part principal be as a them ‍​​‌‌​‌‌‌‌‌‌‌‌​​​​‌‌‌‌​‌​​​‌‌​​‌​​​‌​‌‌‌‌‌‌​‌​‌​​‍to employers] showering refused have and changing to ties for the time incident for their clothes-changing employ- facilities beginning of the shift and clothes at the 251, ees.” Id. 76 S.Ct. 330. end, they must showering at the where Recognizing changing clothes and dangerously caus- make extensive use of showering obligations” “fulfilled mutual materials, and com- tic toxic and employer employee, between the circumstances, including vital pelled by agreed Supreme Court trial court hy- of had considerations health [sic] these activities time “constitute[d] giene, change clothes and to shower to meaning within the of Fair worked law requires in facilitiеs which state 253, Act.” Labor Standards Id. 76 S.Ct. to or employer provide, 330(footnote quota reference internal post- preliminary these activities are or omitted).1 marks tion liminary meaning of the Por- within the and, therefore, Supreme not to explicitly

tal-to-Portal Act Court articulat performed either measuring in the work time ed that “activities be included before dissent, colleague Ironically, colleague proposes respect to in our in dissent 1. With due our holding According suggest bright-line no an- own rule. to the we that our more his Alvarez, rule, contrary holding bright-line to location see Dis- dissent and our nounces compensated senting Opinion, p. than did the courts should be for off- "protective premises donning doffing Ballaris Wacker of [v. Cir.2004)]. (9th Corp., gear” “indispensable” “pre if 370 F.3d 901 Siltronic Indeed, unnecessary injury.” specifically workplace vents Dis we discuss context Opinion, senting pp. 1237-38. Under this officers, rule, donning including brightline protec the facts Mesa any profession regulation required no on- tive would be com rule See, e.g., doffing; pensable. Haight no premises and that Wackenhut presented Corp., 9870(SCR), - F.Supp.2d em- No. Civ. of benefit to the evidence -, -, (S.D.N.Y. ployer. pp. 2010 WL at *1 See 1224-25. We refer infra Mar.2, 2010) (noting security officers' com “disparity circumstances” between Steiner, Alvarez, Ballaris, pensation claim for this case and equipment, including limiting solеly "protective without to loca- steel-toed reference helmet, shoes, glasses, pp. safety [and] tion. hard[hat] 1225-26. infra shift, regular or after the on or off ... [FLSA] on account of the failure of line, employer pay such an production employee under mini- mum wages, pay an employee or to provisions over- portal-to-portal the Fair compensation, time for or on account of if those Labor Standards Act activities are any of following activities of such indispensable integral an of the employee engaged on or May after ...” principal activities 76 S.Ct. 1947— Court Supreme 330. The concluded that conjure “it up would be difficult an walking, riding, or traveling to and instance where clothes and show from place performance the actual clearly ering integral the principal activity are more or activities which employee employed such indispensable part principal activity perform, than in employment the case of Id.2 employees.” these (2) activities are preliminary which to or postliminary to said activity or As we noted in 339 F.3d at activities, which prior occur either provides the Portal-to-Portal Act that: any time on particular workday at which subject [N]o shall to any commences, such employee or subse- liability punishment quent under any particular the timе on ...). gun expansive reading (internal holster” This mandatory”) rules were omitted); Ballaris, Act quotation Portal-to-Portal flies in the face of marks 370 F.3d expressed Congressional intent Alvarez, to limit rather at 911 (recognizing that "as in [the expand employer liability than wage pay- for employer] required employees] change [the to 251(a). § ments. See 29 U.S.C. into and out plant of their uniforms at the ...”) (citations, footnote reference and inter- colleague 2. Our in dissent mischaracterizes omitted). quotation addition, nal marks In holding our a rule.” Dissenting as “new See very expressly case opted this fact, Opinion, p. holding 1234 n. our require motorcycle to officers to don and doff simply applies precedent as established in their uniforms and at home. Steiner, Alvarez, See, e.g., and Ballaris. Alva- Mitchell, The dissent cites also Steiner v. rez, (observing 339 F.3d at 903 that "the don- 350 U.S. 76 S.Ct. 100 L.Ed. 267 ning this on the ... (1956) in an to impor effort minimize the law, plant's premises required by by rules tance precedential of the fact all of that employer], by of [the the nature of the required on-premises cases involve ...) (citation, donning alterations and internal doffing. Although omitted) colleague our quotation added). dis marks speculates sent unlikely that "it seems that colleague Our "any laments that also Court would concluded department have that [knife] that mandates that its officers sharpening compensable was not if the dоn and doff knife- their uniforms and time, enjoyed option men precinct had pay to do must that this task for while those plant,” either at departments home or at the Dissenting that make and doff- n.1, Opinion, p. optional face the fact require- location no remains that such this Dissenting Opinion, precedential case and the p. ment.” other cases all n. 1. Contrary on-premises perception, to involved doffing. the dissent's there is precedential nothing "strange” adopts No eventuality. pre this about Id. case dissent's above, trilogy holding. Although As discussed ferred definitive dissent accuses point expressly Steiner, cases on the majority "parting ways this considers Alvarez, Ballaris," very determining factor in Dissenting Opinion, p. compensable. are actually it is the dissent that seeks to squeeze U.S. at 76 S.Ct. 330(noting nonanalogous that facts of this case clothing Steiner, Alvarez, “removal showering” holdings was re- into the and Bal (citation omitted); quired) laris, see also required all of on-prem which involved 902(explaining F.3d at "donning doffing. ises [compensable] may ceases, a situation princi- “[s]uch such workday at which he ... activity or where the of clothes on activities exist pal required premises 254(a) (1996). § 29 U.S.C. employer, the nature of rules (DOL) Labor has Department of n. 65. the work.” Id. policy statements re- promulgated general Act’s Portal-to-Portal effect garding appliеd we Steiner activ- on the determination Act in the context specific Portal-to-Portal are en- policy statements These ities. considering processing whether meat deference, but are “entitled titled to for plant “compensate employees must [they] have ... extent respect change required the time it takes to into persuade.” Christensen v. power safety specialized protective clothing and 576, 587, 120 County, 529 U.S. Harris to their gear.” F.3d at 897. Prior (2000) (cita- 146 L.Ed.2d S.Ct. shifts, employees marks omit- quotation and internal tions “gather assigned equipment, don ted). equipment plant’s in one of the ... four 790.8, § the DOL declared In 29 rooms, C.F.R. prepare locker work-related all activ- “include[ ] activities principal venturing slaughter tools before integral princi- ities which em- floors.” Id. processing 790.8(b)(foot- activity.” 29 pal C.F.R. “strictly ployees’ regulated time was omitted). 790.8 reference Section note example, at 899. monitored.” For following example of inte- provides also departing processing “[w]hen gral activities: slaughter to the caf- go floors—whether to as included an inte- Among the activities eteria or to the restroom — of a are those gral part hats, hair- permitted only to leave [were] which indis- closely related activities nets, goggles, earplugs, place; and boots If to its an em- pensable performance. glоves, garments, protective gear, outer plant, example, in a chemical ployee scabbards, and chains be removed [had to] principal activities perform cannot his omitted). (footnote Ap- ...” Id. reference clothes, on certain putting without 790.8(c)n.65, § opined we plying C.F.R. employer’s on the changing clothes doffing of that “because the and and of beginning the end premises plant’s premises ... this on the workday integral part an the would be IBP, law, by rules and required by employee’s principal activity. On of the work, and the this the nature of hand, if clothes is the other necessary to principal the merely employee a convenience to (citation, ...” at 903 altera- performed Id. directly principal to his not related tions, quotation marks omit- and internal activities, it as a would be considered added). ted) (emphasis postliminary activity or preliminary Corp., Siltronic Ballaris Wacker of the principal than activi- rather 903(9th Cir.2004), addressed F.3d However, checking as ty. activities such uni- whether waiting in line do so in and out manufacturing forms silicon wafer at a regarded in- ordinarily not as Ballaris, In we plant compensable. were activity parts tegral observing precedent, were faithful to our activities. that: 790.8(c)(footnote references 29 C.F.R. Alvarez, Here, re- omitted) employer] [the as in quotation marks internal addеd). change into employees] to quired explained [the The DOL plant, at the were “a required

and out to don sani- uniforms plant, only tary garment normal provided outer [was] jobs. (3) em- employees’ night 2; [The course ...” and washed each id. n. ployer] [its] issued instructions em- the employer “restructured its shift time plant must wear the ployees to include four minutes of so-called daily strictly enforced 899; (4) uniforms this ...” ‘clothes’ time id. “[o]nce Employees prohibit- requirement. were [began], ... plant employees’ shift plant in their uni- leaving ed from strictly regulated time moni- [was] by security forms and were monitored tored,” id.; employer’s “donning guards compli- cameras and to ensure id.; were mandatory, rules” heavily in weigh ance. These facts favor (6) the rules mutual obli- “fulfilled] activity of a determination that is gations employer and employee.” Id. at excluded the Portal-to-Portal Act. Applying the Portal-to-Portal Act and reference, 911(citations, Id. at footnote facts, holding Steiner these we omitted) quotation (empha- internal marks employer required held that was added). that, Alvarez, sis held “[a]s We compensate its employees for the time plant because spent donning specialized employer, and because the wearing gear. See id. at 904.3 was for those uniforms benefit, spent putting the time them on three-stage inquiry We discern a taking them off must be included as in resolving utilized presented issue (citation Id. time.” and in- stage Alvarez. first addressed omitted). ternal quotation marks activity “work”; whether constituted parroted

Because our holding stage Ballaris the second addressed whether the Alvarez, glean we activity “integral look Alvarez to indispens was we principles apply duty; should while working stage able” and the third addressed Alvarez, toward resolution this case. de minimis. See particular we focused on the “circum- id. at 902-03. we defined ” presented by stances “physical case.... “work” as mental exertion ... 339 F.3d at see id. at required by also 902 controlled or (agreeing with the district court pursued necessarily “under and primarily for case.”). 902(ci presented by the facts employer.” Those benefit omitted) particular added).4 circumstances included the facts tation (emphasis (1) that: “the packing industry meat has articulated definition work contains two been one of regulated conjunctive the most businesses components' activity that is — States[,]” 898; in the United id. at all required by “controlled or employer,” the 3. We goes great did not within umbrella lengths include the The dissent to cite raising district court cases the of wheth- issue spent donning activities time employer requires on-premises er the donning doffing "non-unique protective gear such doffing. Dissenting Opinion, pp. See safety goggles as hardhats and Id. at ..." However, unsurprising it 1237-38. is that compensation The dissent’s insistence that is parties recognized importance the the of that doffing mandated for the of the prominence prece- issue due to its the in "non-unique protective gear” the on officers' Steiner, Alvarez, cases of dential and Ballaris. belt, Dissenting Opinion, pp. uniform see Alvarez, (defining See 339 F.3d at 902 "work” 1237-38, directly portion conflicts with this required by employer as ... "exertion the holding our in Alvarez. omitted) ...") added). (citation (emphasis

1225 law, by required is added), premises omitted) plant’s (citation (emphasis id. nature the employer], rules [the 'pri- necessarily and “pursued that is (citing C.F.R. Id. work.” of the employer.” the the marily benefit of for (alterations (1999)) 790.8(c) n. 65 added); omitted) (citation (emphasis Id. omitted). ex-We marks quotation internal Smith, ‍​​‌‌​‌‌‌‌‌‌‌‌​​​​‌‌‌‌​‌​​​‌‌​​‌​​​‌​‌‌‌‌‌‌​‌​‌​​‍F.3d Rodriguez also see “by rule employer, noted the plicitly Cir.2008) (“[U]se (9th of the 1180, 1186 the mandates that all of condi- conjunctive indicates intervals at various gear clothes met.”) (citation omit- must be listed tions em- workday, requiring throughout Marin ted) original); in (emphasis and to retrieve to wait for ployees Empire Traction v. Modesto & Hosp. Gen. times particular areas particular (ob- Cir.2009) (9th Co., F.3d (cita- Id. premises.” plant’s ... on met for must be prongs both serving quotation tions, and internal alteration conjunctive). test stated legal omitted). was also conclusion Our marks that under argue could One that the undisputed fact predicated case, facts of the retrieving doffing, washing, “donning, by the and related of the uniforms [was], at both broad protective work, simply be constitute do not officers levels, benefit [the done for basic doffing are donning and cause [the ... activities allow These employer]. performed be employer un- requirements satisfy employer] the case Stein as was workplace, at the (citations omitted). law ...” Id. der the a conclu Such er, Alvarez, and Ballaris. case are this The facts we consider un claim the officers’ foreclose sion would to those that formed diametrically opposed analysis. Alvarez stage of the der first Steiner, Alvarez, and Bal- the contexts in Alvarez However, language there Ballaris, Steiner, Alvarez, and In laris. find supporting as interpreted could donning and doff- mandated employer a function of as compensability ing of In this premises. employer’s the officers requirement motorcycle offi- case, exception protective and related a uniform wear workplace cers, donning and at 897. Giv F.3d and Al- Steiner entirely optional. as argument, potential to that ing credence varez, on-premises case, we in this officers by the advanced com- imposed ensure requirement stage Alvarez the second proceed case, the In this with the law. pliance activity arguably analysis —whether regula- rule or cited no have of work contextu definition meeting the donning and on-premises mandating tion “nec i.e. indispensable,” “integral and ally Alvarez, on-prem- Steiner doffing. performed essary to mutual doffing “fulfilled] donning and ises employer.” and done benefit of for employee.” obligations omitted) (citations at 902-03 901; also see 339 F.3d at offi added). that the stage at this It case, 330. In U.S. S.Ct. fal fatally compensability cers’ claims obligation on either identify no the officers ters. by on-premises would be fulfilled that side Steiner, Alvarez, Finally, that the doffing. in we determined donning In Ballaris, don- protec- Alvarez, on-premises doffing job-related of “donning and deter- expressly “inte- were bipartite ning and Steiner's gear satisfied tive employ- benefit of the 903. for Id. at to be test. mined indispensable” gral case, contrast, officers this in that “the er. In fact heavily on the relied We pri- compensability of a conclusion urged ... on gear this doffing of donning and that benefit importance protective were of sole use and manly for reasons of (risk Dissenting pp. of theft of employee Opinion, to the loss or See 1237-38. However, uniforms, why fami- potential access to there is not mention of performing risk of if ly guests, members or less effective donned at the home, discomfort while officer’s home.5 firearm checks at being as offi- commuting, risk of identified Importantly, argument the dissent’s expоsing while and risk of off-duty, cer no bears resemblance the case brought family to contaminants and bodi- members by the officers. The officers urged that fluids from encounters in the line of ly compensated be of pref- because their duty). of the in disparity Because erence don and doff at the workplace, circumstances, are not that we convinced any in due the factors set out Steiner, Alvarez, holdings and Bal- argu- Steiner Alvarez. Unlike the support laris a similar conclusion this dissent, ment manufactured see case of uniforms Dissenting Opinion, p. the officers premis- employer’s and related absolutely that donning made no claim es are under the FLSA as protective gear done “integral indispensable” work activi- employer. benefit The dissent’s Alvarez, F.3d at ties. 903. case, contention rewrites record of “context-spe The dissent references the holding distorts the Alvarez. See inquiry cific” described Alvarez to insert Dissenting Opinion, Indeed, p. 1238. a factor that was never mentioned only portion dissent cites of Alvarez Steiner, Alvarez, prac or Ballaris —“the observing prevention unnecessary difficulty” tical off- workplace injury to the inures benefit Opinion, Dissenting p. site. & n.2. Alvarez, employer. See F.3d time, At the ignores same the dissent 903. The no dissent makes mention of the cases, other factors articulated in those other factors that cоntributed to the con- i.e., on-premises doffing whether “ful that on-premises donning clusion and doff- obligations mutual employer filled] benefitted the —satisfaction Alvarez, 901; employee[,]” 339 F.3d at see of the obligations under the law 330; also U.S. at 76 S.Ct. prevention workplace contamina- on-premises tion. See id. deviating Aside from from doffing primarily employer. benefitted the arguments, the officers’ the dissent even F.3d at 902-03. to speculate ventures may addition, the dissent’s approach com- deterred from using protective gear, and fact pletely elides the that in may injuries we “there be increased or even concluded spent the time Opinion, lives lost.” n. Dissenting p. 1239 doffing “non-unique protective gear a hyperbolic spectre never even hinted safety such as ... goggles respect hardhats the officers with to the fac- not compensable.” Id. at More- compensability. tors that determine over, fact, the dissent not explain insulting does how its it is even suggest officers, analysis applies to professional undercover law enforcement who do not wear the assigned protective compromise safety the safe- gear, Finally, for obvious reasons. ty public for the sake of a few litany reflects, describing dissent includes a As far dollars. as the record officers, uniform, very point effectively dissent makes this with re- who wear no gard Dissenting Oрin- police”). protective uniforms. See same is true ion, p. (noting "ability 1237 of undercover

1227 gear compensa- uniforms and at home are pro- uniforms doffing of donning and FLSA, the im- City gone of Mesa have under the or ruled on gear ble tective day. Yet the rec- to this uncompensated pact of the 2006 DOL memorandum. single officer not reflect that does ord Finding persua- the DOL memorandum forego donning protective gear to elected sive, courts several district have held of compensation.6 a lack due to compensable. are not such activities Richmond, City 504 Martin v. Alvarez Subsequent our decisions of (N.D.Cal.2007), 766, F.Supp.2d 773-74 Ballaris, the DOL considered doffing of district court determined donning of compensability that.the 31, In a gear May indispensable home. uniform not to the offi- clothing and was 2006, memorandum, activities, that: the DOL advised cers’ but that the offi- indispensable is was to their

donning doffing gear equipment cers’ workday only Nonetheless, the continuous within the dis- principal activities. or the nature of the when “the doff- trict court held that place it take job mandates that on protective gear typically home long- It is premises. our employer’s activity un- non-compensable renders that employees that if have standing position 775; Dager Id. at also der FLSA.” see ability change into the option Phoenix, 531864, 2009 at *11 City v. WL home, changing into required gear at 2009) (D.Ariz. Jan.21, (same); City Abbe v. even princiрal activity, is not a 4146696, at *7 Diego, San 2007 WL plant. place it takes when (S.D.Cal. 2007) (same Nov.9, uni- as to No.2006-2, at Hour Mem. 3 Wage & Adv. forms); City Lemmon San but see v. (2006 2006) memorandum) (cita- 31, (May Leandro, F.Supp.2d 1207-09 538 omitted).7 tion (N.D.Cal.2007) that the don- (determining ning of uniforms and previously have addressed We not activities).8 compensable were ability Lojack option and these Corp., v. have the to conduct recent in Rutti 6. Our decision Cir.2010), Inc., (9th F.3d 1046 does at home. 596 activities persuade compensation appropriate is us Rutti, context this case. we in the have concluded that the don- 8.Other courts employee was that the entitled to determined compensable ning of is when compensation performed for tasks at-home employees them option not have the to don do requirement. pursuant Farms, See, e.g., v. Mountaire home. Perez we now are not id. at 1057. facts consider Inc., (D.Md.2009) F.Supp.2d that, analogous, undisputed it as (holding that the officers, motorcycle exception of op- compensable, despite a take-home at home or free to don and doff at work. tion, employees "required because the way imposed by requirement No either policy, and the nature of the work City. work.”); [gear] v. their Lee don and doff Inc., Agency, F.Supp. Am-Pro Protective that the DOL memo- 7. The officers maintain (E.D.Va.1994) (finding donning of analysis of randum is limited to an the contin- seek uniform where "Plaintiffs workday rule. Under continuous uous compensation them for the time that it takes rule, workday workday generally de- "the guard and out of uni- change into period between the commence- fined as forms, site, because are not allowed on completion workday the same ment and already change at and arrive at work home activity employee’s principal or activities.” uniform.”); Bagrowski Maryland (citation IBP, S.Ct. 514 546 U.S. at cf. Auth., However, F.Supp. n. 6 omitted). Port expressly the DOL con- ("The (D.Md.1994) pre-roll only substantial compensabil- sidered memorandum non-supervisory call in which when ity of 1228 purport law,

We are the district persuaded does to have the force of faithfully applied Abbe analysis court’s it is to a entitled measure deference forth in precepts set Steiner and Alva- proportional power persuade, to its rez. The court stated: district principles accordance with the set forth in Co., 134, important

It to note ... the Skidmore & 323 U.S. 65 Swift 161, (1944).” (cita- 124, relevant is not the uni- S.Ct. 89 inquiry L.Ed. omitted). the safety gear review, form or tion “Under level of itself itself most cer- indispensable job they we to the process agency look used to — rather, (citations tainly in- at are —but relevant arrive decision.” Id. omit- ted). quiry is whether the nature of work “Among the factors we consider are doffing process requires interpretation’s thoroughness, rational employer’s premisеs be done on validity, consistency prior with and subse-

quent pronouncements, logic and ex- pertness decision, of an agency the care Abbe, 4146696, 2007 (emphases WL *7 decision, used in reaching the as well as original). formality process used.” Id. similarly persuaded We (citation, alterations, quota- and internal the 2006 regarding DOL memorandum omitted).10 tion marks compensability of the donning We conclude that the 2006 memorandum uniform and home is consistent deference,11 merits Skidmore provides as it Alvarez, with our analysis should approach rational and regard- consistent considered in resolution our of this case. ing the compensability “An agency’s pos rules are entitled two uniforms and related Generally, sible levels of deference. Chevr particular, on9 legislative memorandum’s focus deference reserved for on the location of rules that an agency issues within the am comports bit authority principles entrusted to it established in Steiner, Thomas, Congress.” Tablada v. In each F.3d Ballaris. (9th Cir.2008) (citation omitted). cases, these the employees “Such promul rules, rules characteristically employers, by byor gated only after notice and the nature of comment.” Id. the work to don and doff (citation omitted). “If, hand, on the other their uniforms the agency rule decision is not an premises. within U.S. at area of express delegation 330; authority 903; S.Ct. 339 F.3d at Bal- plaintiffs allegedly engaged Act, putting lations the Portal-to-Portal see Dis- Many their uniforms. officers came to work 1234-35, senting Opinion, p. any without in in their and nothing prevented way articulating why interpretive the DOL's plaintiffs doing Clearly, dressing so. from power persuade. documents lack the integral part was not an of their clothes-changing as were showering 11.The 2006 is not memorandum entitled to routinely exposed habits of workers “[i]nterpretations Chevron deference because hazardous chemicals a chemical manufac- opinion such as those in interpre letters —like turing plant plaintiffs who were the in [Stein- statements, policy tations contained in agency er].”')(internal omitted). quotation marks manuals, guidelines, and enforcement all of U.S.A., 9. Chevron Inc. v. Natural Res. Def. lack which the force of law—do not warrant Council, 467 U.S. 104 S.Ct. Chevron-style Christensen, deference.” (1984). L.Ed.2d 694 (citations U.S. at 120 S.Ct. 1655 omit ted). majority giv- The dissent criticizes the interpre- Skidmore deference to the DOL’s

1229 principal his activities without laris, perform 2006 memo- at 911. The 370 F.3d clothes, changing on certain opines employees putting that consistently randum employer’s premises on the at the compensation when clothes to are not entitled workday to don of the would by employer beginning the end required are not employ- part employee’s integral prin- at the of the uniforms be an and doff option Dep’t have the ...” cipal premises, er’s 11, 2006 Labor, at home. The 908 ability Opinion (Sept. to don and doff Letter No. of therefore, 1968). memorandum, provides However, addi- “employees who elect the determination of support for our going tional at home work are dress before of at-home non-compensability working dressing though not while even in doffing, not addressed an issue re- they put uniform on home is the Steiner, Alvarez, and Ballaris. place in to be worn the of their quired during working hours.” Id. employment true to DOL memorandum is also of FLSA and interpretations the prior its 28, 1974, letter, January opinion In a the 29 example, Act. For Portal-to-Portal reiterated that “clothes DOL 785.24(c)provides: § C.F.R. must be as hours if it time counted worked inte- included as an Among by the activities required employer.” is the rules of those part principal activity Labor, gral of Letter Dep’t Opinion of No. WH- are indis- closely 28, activities which 1, related p. (January WL If an em- performance. 1974) its pensable to (emphasis original). in the plant, example, in ployee a chemical that activities com opined DOL such activities perform principal his cannot employer where “the has ruled pensable clothes, on certain putting without employees depart all stated employer’s on changing clothes ments must dressed uniforms which end of beginning at the premises permitted wear they are not when leav part be an workday integral premises, company under activity ... employee’s change must clothes rules premises beginning and end 785.24(c) added); § 29 C.F.R. 2.12 p. of their shifts.” 790.8(c) (providing also 29 see C.F.R. example). same Operations The DOL Field Handbook “[e]mployees who dress regularly interpreted also instructs The DOL has require go morning to work in the regulations compensation these clothing working dressing though while even when premises. they put required In a on at home are required letter, plant working used opinion during to be September Similarly, any changing which “if an cannot hours. employee advised that DOL 15, 2001). (Jan. Appellants 2001 WL 58864 assert the DOL's 12. The officers that, opinion letter DOL's maintain because inconsistent with the memorandum is 3(o) opinion interpreting does not mention the location letter section letter, clothing, DOL’s mem explained the DOL of the FLSA. In that However, fact em- compensate must orandum inconsistent. employer that "[a]n integral DOL address re any activity that that the did not location ployees for is an opinion quirement letter does not indispensable part employee's principal the 2001 activities, ‍​​‌‌​‌‌‌‌‌‌‌‌​​​​‌‌‌‌​‌​​​‌‌​​‌​​​‌​‌‌‌‌‌‌​‌​‌​​‍on, interpretation regarding taking negate the DOL don including putting off Dep't protective equip- ning home. See of La personal cleaning bor, 1968); ment, (Sept. Opinion No. 908 Letter clothing or Lаbor, Opinion Dep’t No. Letter the nature see also rules Letter, WH-252, 1974). Labor, (January Dep’t Opinion WL 38691 the work.” at home at end of place day sulting takes the reduction of industrial op- integral erations, be an of the em- halting would not of expansion and devel- ployees’ employment and not working opment, curtailing employment, and the Handbook, Operations (2) time.” DOL Field earning power employees; of (12/15/2000).13,14 31, § 31bl3 Ch. many employers credit of would be seri- (3) ously impaired; there would be cre- memorandum’s location con- The 2006 ated both an extended and continuous purposes sideration furthers the under- uncertainty part industry, on the of both Act, the Portal-to-Portal as re- girding employer employee, as to the finan- findings flected in the extensive articulated cial productive condition of establish- § in 29 251: U.S.C. gross ments and a of inequality competi- Congress finds that the Fair Labor tive conditions between employers Act of as Standards amended [29 (4) industries; between employees § has seqj, 201 et been inter- U.S.C.A. would receive windfall payments, includ- preted judicially disregard of long- ing liquidated damages, of sums for ac- customs, practices, established and con- performed by tivities without any them employers employ- tracts between expectation of ees, beyond reward in- thereby wholly creating unexpected (5) liabilities, agreed cluded in thеir of pay; rates immense in amount and retro- there occur would of in- operation, upon employers promotion active in with that, creasing if demands for to em- payment results said Act as so inter- ployees preted engaging for arising or claims under such in- activities no terpretations stand, compensation for permitted were which been con- had (1) templated of payment such liabilities either the or em- bring ployee financial of many in; about ruin em- at the time engaged (6) ployers seriously impair the capital voluntary collective bargaining would others, of many resources thereby re- with interfered and industrial dis- Although prior interpretations DOL in- formed at home does not contradict changing volved the specific clothes did not DOL’s more determination that the gear, include this does not diminish the 2006 are home non- persuasive memorandum’s effect. In compensable as preliminary non-work or 790.8(c), applied § we 29 C.F.R. which deals postliminary activities. clothes, with the accept We argu- also decline to the officers' 339 F.3d at 553.221(b) premised § ment on 29 C.F.R. ("Compensable generally hours of work in- during employ- clude all of the time which an 14. The officers' contention that the DOL ee duty employer's is on premises or at memorandum conflicts with 29 C.F.R. prescribed workplace, as as all well other unpersuasive. § 776.6 pro- Section 776.6 during time employee which the is suffered or ''[e]xcept general geographi- vides that for the permitted employer. to work for the Such 776.7, cal limitations discussed in the Act pre-shift time post-shift includes all activ- prescription place contains no as where integral ities employ- which are employee must work in order to come principal activity ee's closely or which are coverage. employees within its It follows performance related to the coming otherwise within the terms of the Act ...”). regulation way This no es- they per- entitled to its benefits home, tablishes that the work at uni- factory, form their forms and specific provisions elsewhere. The activities. of the Act Rather, regulation regulation merely provides relative of homework serve (footnote emphasize defined, once employee this fact." work activities are references omitted). general employ- compensated performance statement that must be for the may ees per- be entitled to for benefits all those defined work activities. employees employers their uniforms and at home. There is putes between employees rule, and between regulation, policy practice no (7) created; the courts of the would be limits officers’ City option country would be burdened exces- Although any way. logical reasons exist litigation and cham- sive and needless not to avail them- encouraged; would be pertous practices such option, selves of the at-home as com- Treasury would be de- Public fort, concerns, safety exposure of fam- revenues and prived large sums of substances, ily members certain these seriously would be de- public finances preferences reflect rather than reasons ranged by against claims Public sum, donning doffing In and mandates. already taxes Treasury for refunds of are not gear required uniforms and related (9) paid; the cost the Government rule, by law, or the nature of and services heretofore here- goods and performed officers’ to be at purchased by depart- various after employer’s premises. agencies ments and unreason- ably Treasury and the Public increased analysis Our consistent the rea- by seriously affected conse- would be soning employed Haight the court contracts; cost quent increased of war Corp., 9870(SCR), Wackenhut No. 03 Civ. and adverse effects and serious — -, F.Supp.2d 2010 WL 769539 Federal, State, and upon the revenues (S.D.N.Y. 2010). Mar.2, Haight, securi- governments would occur. local ty sought compensation for the 251(a).15 § A location consider- 29 U.S.C. hardhats, donning doffing time spent and goals by supports Congressional also ation boots, safety glasses, gun steel-toed under which clarifying thе circumstances *5, id. at ——. Although holsters. See for the compensated must be argument certainly could be made that this donning doffing gear, of uniforms protective gear security enabled the offi- thereby preventing unexpected and sub- perform assigned cers to better employers. liability to Consistent stantial tasks, con- the district court nevertheless conclude that principles, we with these cluded that the uniforms and integral protective gear was not compensable under the con- gear are not performed by work activities principal case.16 facts of this We textually-specific The court security officers. See id. found court it is agree with the district significant the fact that the se- “[m]ost ]” undisputed in the record that officers oth- curity officers were “not motorcycle than officers retain com- er change premises option ability [the] to don doff plete added). Employees, findings conspicu- at 3 of these randum Discussion therefore, dissenting opinion. ability ously must have the to don and from absent home, just option. at doff their not Appellants’ hypothetical regarding a detective assertion, Contrary officers’ malting investiga- being compensated not “open a memorandum does not DOL tory conducting case calls research loophole the FLSA” treat- considerable is, therefore, particularly unpersuasive, home as non-com- at-home generally description as meet the these do pro- pensable. does not The memorandum preliminary postliminary activities. See non-compensable. vide work is that at-home 254(a) Instead, (describing preliminary U.S.C. narrowly on the it focuses acts postliminary activities as other than "employees where the change “the or activities which such ability option have the into employed perform.”). employee is required gear at ...” 2006 memo- home option changing ties[,]” have the at home.” Id. necessarily were not integral *6,-(citation omitted). to those principal activities. Id. at 594. The Second Circuit observed that expressly “[t]he The district court relied on the donning and doffing of such generic pro- Second Circuit’s decision in Gorman v. tective was not different in kind from Corp., Consolidated Edison 488 F.3d 586 (2d clothes and showering under Cir.2007) nor- to conclude that equip- conditions, mal which, under ment “generic protective issue was (citation not covered the FLSA.” Id. gear” that “non-integral and non-com- omitted).17 and internal quotation marks pensable FLSA.” Haight, [the] under *5,-(citation omitted). WL To the Haight extent imply Gorman turn, the Second Circuit looked to generic protective gear is never com- Steiner, Mitchell, and guid- Alvarez for pensable, we adopt do not this conclusion. Gorman, ance. See 488 F.3d at 590-91. 339 F.3d at 903 (observing recognized Second Circuit only that certain non-unique protective gear integral activities are “that and indispens- may be integral and indispensable). How- able to activities compensable ever, Alvarez, as with Haight and Gorman (citation under the FLSA ...” Id. at 590 exemplify that the compensability analysis omitted) quotation internal marks is “context-specific.” 339 F.3d at added). The Second Circuit as- 902. The disregards dissent this require- tutely recognized that there is a difference ment and automatically assumes that the between an indispensable activity and an donning of protective gear are integral activity. That an activity is indis- compensable. See Dissenting Opinion, pensable necessarily does not mean that pp. 4794-96. This assumption, without re- integral to the principal gard to options available police work performed. id. 592-93. officers, contravenes our precedent and While expanding distinction, on the creates needless intercircuit tension. Second explicitly Circuit noted the narrow interpretation “invite[d]” Steiner. Id. IV. CONCLUSION at 593. The Second Circuit reasoned that “Steiner supports therefore the [narrow] We readily acknowledge applaud view that when work is done in a lethal many law enforcement officers atmosphere, the measures entry that allow throughout this Circuit who put their lives and immersion into the destructive ele- on the daily line to ensure the continued may ment integral be to all work safety done of our communities. Our ruling in there ...” Id. The Circuit Second con- no way should be interpreted as denigrat- trasted equipment at issue in Steiner ing the vital role these fill with the gear donned and doffed rubric of society. Nevertheless, analy- our aof nuclear power plant, em- sis of the governing statutes, as informed phasizing although helmet, safety by the interpretation, DOL our precedent, glasses and steel-toed might boots “be in- cases; and other analogous leads us to the dispensable plaintiffs’ principal aetivi- conclusion that the donning and doffing of 17. The Second Circuit also Rather, stated that adopt premise. "[t]he recog- as generic protective nized in see 339 F.3d that is gear is not integral by rendered being re- one factor compensa- considered quired by government bility determination. regulation.” (citations omitted). We do contrary Supreme This rule is are not new and related uniforms context-specific case. No approach in this to deter- activities Court’s rule, employer, or Even requirement mining compensability. absent work mandates nature of the conflict, I that the new rule will do doubt premises, clarify governing much the law when articulated other factors and none a conclusion of in favor of weigh

Alvarez compensable. issue of fact No material comрensability. A this case that the record of raised on police uniforms and doffing of First, Supreme approach Court’s “[t]he compensable work activi- related principal, integral indispensable to this FLSA, by the as amended ties under the duty context-specific.” Alvarez question court, Act. district Portal-to-Portal Inc., (9th IBP, Cir. F.3d therefore, granted summary properly 2003) (internal omitted), quotation marks City. in favor of judgment aff'd, U.S. 126 S.Ct. AFFIRMED. (2005) (citing approval L.Ed.2d 288 specific” description our “context GOULD, Judge, concurring in Circuit determination). compensability Steiner dissenting judgment Mitchell, Supreme the two Court part: illustrating proper approach cases bright-line announce a loca- I would not determining compensability under the Por compensability rule controls the tion that Act, a tal-to-Portal examined more than postliminary activities preliminary and in dozen factors the two cases between The the FLSA. location where under Steiner, determining compensability. many just is one performed changing the clothes Court concluded compensa- tools in the fact-sensitive useful showering compensable and were activities analysis. Location is not and of bility performed battery-plant employees I controlling test. Because dis- itself looking Steiner after to industrial stan majority’s approach with the and agree dards, requirements, state-law insurance- job-related protec- to holding respect with requirements, operational-efficien carrier only judgment I concur gear, tive considerations, cy provided who the work respect majority’s determina- with clothes, timing the location and of clothes donning doffing police tion that the and showering, and the absence of changing I non-compensable. uniforms is policy governing changing written clothes doffing of donning pro- and hold testimony plant showering, and of the subject to gear compensable, a de tective policy required foreman that an unwritten Thus analysis on remand. I re- minimis bathing, exception post-shift and the to part. spectfully dissent policy injured for an worker who bathing I did not use the common showers. Steiner Mitchell, 1, 76 350 250-51 & n. U.S. rule majority bright-line creates a (1956). In Mitch S.Ct. 100 L.Ed. 267 uniforms and donning ell, companion case to integral indispens- protective gear is that butchers’ time Court determined work, to thus able compen knives sharpening and saws was FLSA, only “requirement if under looking at who furnished sable after law, rule, employer, or the nature tools, impor sharpening knives the work mandates when sharp butchering, tance knives to premises.” Op. 1234 done, practical was sharpening requirements of on-site donning where sharpened per day. that are not many presented

how knives here.2 Co., King Packing 350 Mitchell v. U.S. majority requirement conflates the 260, 261-62, 100 L.Ed. S.Ct. рiece that a of clothing gear be donned (1956). Although the location of the importance piece on-site with sharpening and knife clothes gear job for the performed. has See analysis in both Steiner formed (“[T]he Op. at inquiry relevant Mitchell, location not dominate or did requires whether the nature of the work inquiry.1 control the process be done (alteration Ninth on employer’s premises.”) The two Circuit FLSA cases prior omitted) involving clothing protective gear (citing have Abbe v. City Diego, San (S.D.Cal.2007)). emphasized the location where was WL at *7 doffed, of those perhaps donned and but both cases This error arises because the na- impractical particular piece clothing featured or dan ture of a (1) plant. gerous gear simultaneously from the remove determines wheth- Corp., Wacker Siltronic er it practically Ballaris v. can be donned and doffed (9th Cir.2004) off-site, F.3d (discussing wearing 903-04 full-body “bunny suit” that must is integral indispensable be to the work related, worn prevent performed. contamination from out Although the two in- side, air); quiries ambient F.3d at should remain distinct. While Bal- (listing gear designed n. 2 repel laris may suggest and Alvarez that on-site liquid blood and usually associated animal- will trigger sufficient to disassembly FLSA, carcass that must be cleaned compensability under the on-site shift). practical after each No such diffi is not necessary to make wоrk- culty respect activity, exists with protective related like putting Rather, protective gear, gear, and I would compensable. only distin nec- guish Ballaris and as involving essary Alvarez conditions remain those set out Mitchell, plant 1. meat-packing Perhaps In the something, housed ment. I missed but it emery grindstone a room with an and quite strange wheel seems that the same exact activ- sharpened where the knifemen ity their tools. only would be sometimes 76 U.S. at S.Ct. 337. Because of the majority's under the FLSA if we the follow centrality sharpening to butchering, of knife it rule. unlikely seems that the Court have sharpening compen- concluded that was not majority 2. The is concerned that I discuss the sable enjoyed option if the knifemen had practical difficulty donning doffing and off- plant. to do this either at or at the task home though site it explicitly even was not ad way, sharpen Either the knifemen had to their Op. dressed in the Ballaris and cases. Alvarez perform properly knives and saws majority’s assumption at The 1225-26. that jobs, presumably so the task would have been may properly collection factors that be compensable. See id. compensability analysis considered in the highlights closed Ballaris after and Alvarez Regardless analogous. The facts here are compensabil view it incorrect takes of the donning doffing of the location where and ity inquiry. аppropriate It is to consider ev place, police perform takes the same ery donning doffing po fact relevant to steps ready series their uniforms and rule, gear, lice uniforms and and to evaluate majority's new those any Under total department previously that circumstances under the mandates that its es offi- majority doff tablished But cers don and their uniforms and law. substance time, precinct pay artificially inquiry must has for that while narrowed the to one departments donning doing, those majority make the factor: location. In so doffing optional require- context-specific approach. location face such no eschews Alvarez's Op. donning ing premises.” Court Steiner: Supreme added). “integral (emphasis must be clothing ac- indispensable short, cogni- majority ‍​​‌‌​‌‌‌‌‌‌‌‌​​​​‌‌‌‌​‌​​​‌‌​​‌​​​‌​‌‌‌‌‌‌​‌​‌​​‍whether the are em- [the officers] for which tivities not, its reasoning zant of it or in substance It U.S. S.Ct. ployed.” 350 a location before don- imposes prerequisite used, not equipment piece is how the doffing can ning compensable. doffed, that just it is where donned a making mere location such salient and doffing integral donning makes factor, majority I do dispositive errs. indispensable. Supreme not believe Court’s context- announc- majority says that it is not reasonably jurisprudence FLSA specific ing location condition for don- bright-line imposition re- suppоrts the of a location But doffing compensable. to be ning and quirement donning likely interpretive we must evaluate apply does not other work activities. First, adopts it its rationale. effects of where per- The location the loca- of Labor’s “focus on Department control, inform, should but not our formed doffing.” Op. at 1228. tion of I would continue to use location inquiry. Steiner, Second, ways Al- parting many ingredients in the com- as one of varez, compen- and Ballaris —cases determination but would not pensability majority sated —the dispositive it in a of FLSA make subset reason that does not cases. there “integral indispensable” were here, Supreme precedent as but not Court B 350 U.S. requires. problem The second I see with the Instead, majority asks S.Ct. requirement location is that bright-line it donning and doff- “on-premises effectively bright will not create line Steiner, Alvarez, ing” majority majority seeks. added). By Op. Ballaris. Depart- adopts position taken Steiner, Alvarez, limiting the discussion in a Advisory of Labor Memo- ment chang- to the “on-premises” and Ballaris staff.3 Department randum written majority narrows requirement, is our “[i]t That memorandum states that inquiry. test into a one-fact many-factored position if longstanding transforming Only by on-premises change option ability have the into into the fact of those signal home, required gear into facts majority that the cases can thе assert principal activity, is not a even that “diametrically opposed” appeal this place Dep’t plant.” it takes when Steiner, Alvarez, Op. Ballaris. See Labor, Wage & Hour Mem. No.2006~ Adv. demonstrating point final at 1225. The 2006). 31, (May 2 bright- in effect creates a opinion that the and abil- language “option about the majority’s jumps rule out from the line rise to conclusion, ity” change gives home holds that which doffing is com- argument no re- compensable not “where doffing is not have employees ... and doff- where do quirement pensable mandates rulemaking. See 29 C.F.R. Advisory Memorandum comment 3. Neither the 2006 790.1(b)-(c); General Department's County, Statements of nor the Christensen v. Harris Act car- Policy regarding the 1655, Portal-to-Portal 576, 587, S.Ct. 146 529 U.S. 120 they are not the ry of law because the force (2000). L.Ed.2d 621 product adjudication or notice-and- of formal 1236 ability perform

true the tasks at home. nature of their requires work it. The argument This a de require- bright-line location requirement will do lit- —that facto employee ment forces don and doff tle to resolve the issue of when police repeatedly on-site—has been advanced must compensated officers for donning circuit, police officers our often in re- uniforms and sponse invocation of the While straying from the Supreme Court’s See, Memorandum. Advisory e.g., context-specific principles, the mаjority’s Oakland, City Valladon v. 2009 WL approach will in provide effect little actual 3401263, (N.D.Cal.2009) at *9-10 (denying guidance. city’s summary judgment motion for be- cause evidence supported sufficient a de II policy requiring officers to don and

facto Applying a context-specific approach to on-site); Phoenix, doff Dager City v. claims, the Mesa officers’ agree I with the 1085, (D.Ariz.2009) 646 F.Supp.2d majority that the time spend officers don- (finding option to don and doff at ning their uniforms is not com- home “illusory” twenty- not because pensable. hold, I would however, that the nine changed par- completely time spent donning and doffing protec- tially home); Maciel v. City Los tive compensable, Angeles, subject to a F.Supp.2d de (C.D.Cal.2008) (finding analysis. minimis all prac- “[f]or tical purposes, the equipment must be A

donned and doffed at the sta- assigned tion”); City Leandro, v. Lemmon San uniforms, Where concerned, we start (N.D.Cal.2007) 538 F.Supp.2d with the baseline understanding (finding “strong indicia that the donning changing clothes under “normal condi- and doffing uniform at tions” is a non-compensable preliminary or station is a de requirement”); Mar- facto postliminary activity under Portal-to- Richmond, tin City v. 504 F.Supp.2d Portal Act. 350 U.S. at (N.D.Cal.2007) (finding genuine S.Ct. For clothes changing to become issue of material fact as to whether the case, in this it must be inte- nature of permits off-site don- gral indispensable to policing, meaning ning Indeed, and doffing). the allegation that it is necessary to the principal policing of a de policy requiring on-site don- facto activities done for the benefit of the ning and doffing was raised in very this employer. 339 F.3d at 902- case. Mesa, Bamonte City 2008 WL (D.Ariz.2008). at *6 majority In the cases opinion where donning and doffing endorses argument by explain- “uniform” has been found compensable “must have ability to don and Steiner and home, doff their Ballaris —the uniform per just option.” Op. job-related at 1231 formed n.16. function other than merely identifying the wearer with par a Rather than clarifying donning ticular occupation. the “old and police gear and is but clean work clothes” compensable, provided by the the majority’s approach will employer and just worn change employees the the terms of the Em- debate. helped ployees protect will workers now focus from lead energies their oxide (1) showing poisoning. either that 250-51, their at U.S. 76 S.Ct. maintains a policy de 330. requiring on- Clothes helped also facto site donning doffing, or employees injury avoid related to severe Martin, F.Supp.2d at 774. Because 76 S.Ct. I acid burns. Id. sulphuric Ballons, are were conclude that officers’ uniforms not employees some 330. necessary policing, of a work of consisting principal a to wear uniform required portion judgment shirt, under I concur polo pants, shoes that the bunny holding spent F.3d at 903-04. time suit. 370 protеctive compensable. uniform, employee doffing the uniforms is not according to The reasons, manual, necessary many was B con- potential to “limit cleanroom including under clothing from the worn tamination analysis protec- with to the respect The The suits.” Id. at 904. cleanroom entirely The gear tive is different. Mesa the manufacture of silicon uniform aided required to wear officers are at all times a in- limiting impurities air-borne wafers belt, keepers, duty belt firearm and hol- clothes. through street troduced ster, cases, case, magazine handcuffs and Ballons, it was In both Steiner and holder, spray telescopic CAP-STUN uniform, not functional role holder, holder, baton and with TASER employee, fact that it identified the portable a radio with holder. A bullet- compensability. triggered vest, helmet, proof and traffic vest must be times, available to the at all identify Mesa officers’ uniforms The mandatory of these is items officers, they argue them as circumstances, when certain such as presence” this creates “command officer executes a search warrant or di- arresting necessary to their work rects traffic. The officers are also re- quieting situations. or volatile suspects leg quired to have arm restraints Yes, authority, but the uniform connotes flashlight at all times while on available shirt, tie, nametag, trou- long-sleeved City The shift. Mesa issues most sers, socks, do not and authorized footwear gear pur- and reimburses officers for the arrests, making inter- assist the officers bullet-proof chase of their vests. These witnesses, reports viewing writing —to tools, always which worn available principal a few of their activities— name shift, during “job-related protec- clothing would. any more than substitute gear.” tive 339 F.3d officers, ability who The of undercover uniform, illus- effectively police wear no protective gear similar to Brey- point. agree Judge I trates the sanitary aprons, liquid-repelling er’s view: sleeves, gear, metal-mesh and Kevlar connote, authority they gloves from the issue Alvarez. meat-

Aside employees processing of an do were uniform] articles officer’s [the protective “at suspects, catch do not don and doff vari- help workday.” throughout officers from violence. Some- ous intervals protect of a salutary more than the effect Id. Because Alvarez thing cul- recognize required by employer policy, those its uniform on who necessary to make nature of the work to don and use the significance tural gear, “necessary was doffing “integral protective “principal Id. Fi- indispensable” performed.” officer’s job-related If the nally, of law activities” enforcement. otherwise, for the benefit of protective law were all uniforms done helрed compensation employer, gear the because the the entitle their wearers to satisfy pre- legal requirements, the FLSA. under contamination, workplace Having job- vent and avoid Mesa. determined that the injury. gear protective necessary related is to the performed principal work for donned worn Analogizing protective gear the employer, the benefit I Alvarez, I would hold gear conclude spent time gear of this is protective gear integral is indispensable integral and to the principal gear necessary The to indispensable. Ballaris, id.; policing activities. See making public protecting arrests and F.3d at 910-11. injury, two of the activities from step compensability The last anal performed the Mesa officers. More ysis is a determination of an oth flashlight officers specifically, use the evidence, erwise-compensable suspects locate and use the com not portable backup. radio to call for The pensable because the time firearm, baton, spray, CAP-STUN hand- complete 1224; it is de Op. minimis. cuffs, help and TASER all the officers see (citing also F.3d at 903 suspects protect restrain and subdue States, Lindow v. United 738 F.2d public the officers members of the (9th Cir.1984)). 1061-62 Supreme helmet, dangerous persons. from Court has said that the FLSA does not vest, traffic and bulletproof vest further “a compensate few seconds or minutes of safety protect officers’ while en- beyond working scheduled in dangerous gage principal activities. hours.” Anderson v. Mt. Pottery Clemens indispensable gear This task of Co., 680, 692, 328 U.S. 66 S.Ct. policing, flexibility and the surrounding (1946). L.Ed. 1515 We have said the gear may where donned doffed “periods approximately 10 minutes” are singlehandedly cannot alter fact. Lindow, often considered de minimis. Donning gear protective (citing peri 738 F.2d at 1062 finding cases done employ- is also for the benefit ods two between and fifteen minutes de er, one the main considerations deter- minimis). I might imagine that the time mining compensability. 339 F.3d put it on takes and take off a belt at 902. Gear that prevents unnecessary only seconds, vest runs or min a few injury workplace employ- is donned for the utes, is not compensable under de er’s Id. at protective benefit. 903. The test, but, given minimis district gear helps injury avoid or death parties court’s approach, did not make Likewise, during violent situations. offi- So, record on de minimis issue.4 protective help keep cers use case, my theory of the a remand would be public safe while on the roads when for necessary evidentiary hearing to threatened violence. The serves determine whether the spent time to don function protecting the dual the officers protective and doff the protecting public, it is there- is de minim- City fore donned the benefit is. put

4. Even if the time to following on and take off the compensable. commute are protective gear Lojack (9th Corp., is not de and is com- minimis Rutti v. 596 F.3d 1046 FLSA, pensable Cir.2010) under (holding the officers' com- that data transmissions time thereby performed mute be rendered integral at home are an indis- compensable. specifically pensable Commute principal job activity, time is but ‍​​‌‌​‌‌‌‌‌‌‌‌​​​​‌‌‌‌​‌​​​‌‌​​‌​​​‌​‌‌‌‌‌‌​‌​‌​​‍compensability. excluded from FLSA holding nonetheless that the ac- off-the-clock 254(a)(1); § U.S.C. tivity 29 C.F.R. 785.16. That not extend workday did render is true even where compensable). some at-home activities time commute III location-based disagree

I majority, by the created rule

bright-line I to dissent.5 respectfully me

prompting conclude

would instead gear is police protective doffing of involved is de the time unless to the judgment I concur

minimis. donning and it holds that the

extent not com- uniform is of the

pensable. America,

UNITED STATES

Plaintiff-Appellee, MACIEL-ALCALA, aka

Alberto Ramirez,

Ramon Alfredo

Defendant-Appellant.

No. 09-50038. Appeals, Court of

United States

Ninth Circuit. 6, 2009. Aug.

Argued and Submitted 25, 2010.

Filed March using ty's holding may deter some from my disagreement on a Although ground I majority may inju- gear, about there be increased protective different view from controlling precedent, I also Supreme Court's Consider ries or even lives lost. pragmatic about the grave reservations have problems threaten- might intervene to address may consequences majority's rule. It ing public safety are en route to while penny pound to save the wise but foolish work, pro- dangers increase absent and if so protective expense compensating for majority labels this tective That only illusory at home. This is donned my “hyperbole” does not resolve possibility any saving de minimis in if the work was concern. Worse, majori- extent that the event.

Case Details

Case Name: Bamonte v. City of Mesa

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Mar 25, 2010

Citation: 598 F.3d 1217

Docket Number: 08-16206

Court Abbreviation: 9th Cir.